### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

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- 60070

UNITED STATES OF AMERICA , Plaintiff

–

Appellee ,

versus

KEVIN COE , Defendant

– Appellant

.

* * * * * * * * * * * * * * *

No. 1 3

- 60091

UNITED STATES OF AMERICA,
Plaintiff

–

Appellee ,

versus

JARVIS JONES,
Defendant

– Appellant

. United States Court of Appeals Fifth Circuit 

### FILED December 9, 2013 Lyle W. Cayce Clerk Case: 13-60069 Document: 00512465380 Page: 1 Date Filed: 12/09/2013Appeals from the United States District Court for the Northern District of Mississippi No. 2:10

- CR

- 78

- 7 No. 2:10

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Before STEWART, Chief Judge, JOLLY and SMITH , Circuit Judges

. JERRY E. SMITH, Circuit Judge : *

Kevin Coe and Jarvis Jones were runners in a fraudulent telemarketing scheme. The plot operated by informing elderly individuals that they had won prize money from a ficti ti ous sweepstakes, but, before any money could be sent to them, the y needed to wire the taxes and other fees to members of the scheme. Coe and Jones pleaded guilty to one count of conspiracy to com mit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349. They appeal their sentences. Because the district court did not clearly err in applying the vulnerable

victim enhance ment and in not applying the minor

- participant reduction , we affirm the sentences in part. Because , however, the court plainly erred in impos ing enhancements under U .S. S ENTENCING G UIDELINES M ANUAL (“U.S.S.G.”) § § 2 B1.1(b)(2)(B) and 3A1.1(b)(2), we vacate the sentences in pa rt and remand for resentencing.

I. Between January 2008 and July 2009, George Coe, Jr., David Beasley ,

* Pursuant to 5 TH C IR . R. 47.5, th e court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. Case: 13-60069 Document: 00512465380 Page: 2 Date Filed: 12/09/2013No. 13

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- 60091 and Patrick Beasley made a series of fraudulent telephone calls to persons throughout the U nited States and t old them they had won prize money from a fictitious sweepstakes or prize event. 1 The victims were advised that they would not be sent the winnings until the taxes or other fees had been paid. The victims wired money to various locations where a runner 2 would pick up the money at Western Union or Money Gram , keep part of i t , and transfer the remain der to the person who had called the victim. The victims receive d no
money or other benefit. The eight co

- conspirators victimized 91 indi viduals, 61 of whom were over the age of 55

. Additionally, George Coe, Jr., Patrick Beasley, and David Beasley would call someone who had already been victimized by the scheme one or more times, falsely stating that the original transfer has not been succe ssful, to induce the victim to send even more money. Several victims wired money to the co

- conspirators multiple times on the same day , which the runner would then obtain

. A federal grand jury returned a thirteen

- co unt indictment naming Kevin Coe, Jarvis Jones, and the six others. Coe and Jones 3 were charged in one count of conspiracy to commit wire fraud and two co unts of committing wire

1 Because we are familiar with the facts, having heard appeals from many of the co

conspirators, w e summarize the relevant facts for purposes of Coe’s and Jones’s appeals. See United States v. Allen , No. 12

- 60302, 2013 WL 3285686, at *5

– 6 (5th Cir. Apr. 8, 2013) (per curiam) (unpublished), cert. denied , 134 S. Ct. 276 (2013); United States v. Thomas , 476 F. App’x 14, 15 (5th Cir. 2012); United States v. Beasley , 481 F. App’x 142 (5th Cir. 2012).

2 The runners were Timothy Allen, Kevin Coe, Jarvis Jones, Christina Richards, and Scott Thomas.

3 Coe and Jones come to us in similar procedural postures, a nd each raises the same
sen tencing issue (although each also raises one unique issue). We have therefore consol i

dated their appeals for purposes of this opinion. 3 Case: 13-60069 Document: 00512465380 Page: 3 Date Filed: 12/09/2013No. 13

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fraud ; they entered guilty pleas to con spiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349. Coe ’s and Jones ’s presentence report s (“PSRs”) computed their base offense level s to be 7 and increase d th at level by fourteen pursuant to § 2B1.1(b)(1)(H) , holding each responsible for a $448,084 loss . The ir PSR s also recommended three adjustments: (1) a four

- level enhancement pur suant to § 2 B1.1(b)(2)(B) because the offense involved f ifty or more victims; (2) a two

level reduction pursuant to § 3B1.2(b) because the PSR determined them to be minor participant s in the conspiracy; and (3) a three

- level reductio n for accep

tance of responsibility, for a net offense level of 20

. Coe received eight criminal history points, which established a criminal history category of IV ; his PSR thus listed his guideline range as 51 to 63 months ’ imprisonment

. Jones received f ive criminal history points, which estab lished a criminal history category of III ; his PSR listed his guideline range

as 41 to 51 months

. The government filed the same three objections to both PSR s . First, i t objected to the two

- level minor

- participant reduction . Second, because the gov

ern ment believed Coe and Jones knew or should have known that victims of this offense were vulnerable, i t objected to the PSR s’ failure to recommend the
two

- level vulnerable

- victims enhancement . Finally, the governmen t objected
to the PSR s’ failure to include two additional levels under § 3A1.1(b)(2) because of the large number of vulnerable victims. The district court sustained all three of the government’s objections for both defendants. It determined a guideline ra nge of 92 to 115 months for Coe and 78 to 97 months for Jones. It sentenced Coe to 92 months and Jones to 88 months and imposed $204,915.06 in restitution to be paid jointly and severally

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among Jones, Coe, and any other de fendants convicted in this case. The par ties, however, later beca me aware that the court had erred in applying the § 3A1.1(b)(2) enhancement

. 4 The court therefore held another

sen tencing hearing at which it (1) calculated Coe’s new guideline range to be 77 to 96 months and (2) sentenced him to 80 months ; l ikewise, the court (1) cal

culated Jones’s new guideline range as 63 to 78 months and (2) sen tenced him
to 71 months. Coe and Jones appealed their sentence s , but b ecause the di strict court had corrected the sentence s after the fourteen days allowed by Federal Rule of C riminal Procedure 35, we determined that the district court lacked juris dic

tion to reconsider the sentence s
. 5 Because the court had not entered judgment on the original sentence s , we dismissed the appeal for lack of jurisdiction ; 6 t he district court has since entered jud gment on the original sentence s
. On this second appeal, Coe argues that the district court erred by not applying the minimal

- participant reduction ; Jones contends that the court erred by impos ing the vulnerable

- victim adjustment. Both additionally main

tain that the court erred by imposing the large

- number

- of

- vulnerable

- victim s enhancement.

II. Pursuant to Gall v. United States , 552 U.S. 38, 49

– 51 (2007), this court

4 Because the district court had also applied the § 2B1.1(b)(2)(B) enhancement, it could
n ot have applied the § 3A1.1(b)(2) enhancement in addition.

5 See United States v. Coe , 482 F. App’x 957, 957

– 58 (5th Cir. 2012) (per curiam)); United States v. Jones , 482 F. App’x 956, 956 (5th Cir. 2012) (per curiam).

6 See Coe , 482 F. App’x at 957

– 58; Jo nes , 482 F. App’x at 956. 5 Case: 13-60069 Document: 00512465380 Page: 5 Date Filed: 12/09/2013No. 13

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Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court committed a “significant procedural error,” such as miscalcu lat

ing t he advisory guideline range. Id. at 752

– 53. If the court did not commit
pro cedural error or the error is harmless, we may proceed to the second step and review the substantive reasonableness of the sentence for an abuse of dis

cretion. Id. at 753.

“ W here a defendant objects at sentencing, we review the district court ’ s find ings of fact for clear error and its conclusions of law de novo

. ” United States v. Anderson , 559 F.3d 348, 354 (5th Cir. 2009). F actual findings are not clearly

erroneous if the district court could have plaus i bly made them “ in light of the record as a whole.” United States v. Alford , 142 F.3d 825, 831 (5th Cir. 1998) (quoting United States v. Sanders , 942 F.2d 894, 897 (5th Cir. 1991)). We review for clear error a determin ation that a defendant qualifies for an offense

- level adjustment for a mitigating role

. United States v. Valencia , 44 F.3d 269, 272 (5th Cir. 1995). A party seeking an adjustment to the base offense level “ bears the burden of proving by a preponderance o f the evidence that the adjustment is warranted. ” See United States v. Miranda , 248 F.3d 434, 446 (5th Cir. 2001). The sentencing court may “ consider all relevant evi

dence, even inadmissible evidence, in determining whether an adjustment is warranted so long as the evidence has a ‘ sufficient indicia of reliability to sup port its probable accuracy.’” Id. (quoting United States v. Patterson , 962 F.2d 409, 414 (5th Cir. 1992)). Similarly, we consider a determination of vulnerability to be a factual find ing “which the district court is in the best position to gauge [because it] had the opportunity to observe the victim in court.” United States v. Rocha , 916
6 Case: 13-60069 Document: 00512465380 Page: 6 Date Filed: 12/09/2013No. 13

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- 60091 F.2d 219, 24 4 (5th Cir. 1990). In light of the complex factual deci sions that the district court must make, we give due deference to its “determination of the victim’s vulnerability” and its “determination of what the defendant knew or should have known.” See id. W here the defendant did not object, we review only for plain error. See United States v. Mares , 402 F.3d 511, 520 (5th Cir. 2005). To succeed, the defen dant needs to show that (1) the district court err ed; (2) th e error is plain; (3) th e error affects substantial rights; and (4) th e error “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” See id. ( quoting United States v. Cotton , 535 U.S. 625, 631 (2002) ). Even in the context of plain error, w e consider the “error” prong de novo

. United States v. Garza

Lopez , 410 F.3d 268, 272

– 73 (5th Cir. 2005).

III. Coe argues that the district court erred by not considering him to be a “min imal participant” under § 3B1.2( b). Coe asserts that he was responsible for a smaller monetary amount and fewer victims than was his co - conspirator, Jarvis Jones. 7 Section 3B1.2 provides that a district court must reduce the offense level by four if it determines that t he defe n dant was a “minimal participant” or by two if he was a “minor par ticipant

. ” 8 A “minor participant” i s an individual “who is less culpable than most other participants, but whose role could not be

7 Jones does not present this argument on appeal.

8 The comments to § 3B1.2(b) also make clear that this adjustment applies only if “more than one participant was involved in the offense.” I d. § 3B1.2 cmt. n.2. 7 Case: 13-60069 Document: 00512465380 Page: 7 Date Filed: 12/09/2013No. 13

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described as minimal.” I d. § 3B1.2 cmt. n.5. 9 To be eligible for an adjust ment under this section, the defendant must be “sub stantially less culpable than the average participant.” I d. cmt. n.3. 10 E ven if a defendant can show that he was less culpable than other co

- defendants, that fact “does not automatically qual

ify [him] for either minor or minimal participant status.” United States v. Atanda , 60 F.3d 196, 198 n.1 (5th Cir. 1995)

. T o be a minor participant, he

“ must be peripheral to the advance ment of the criminal activity. ” United States v. Martinez

- Larraga , 517 F.3d 258, 272 (5th Cir. 2008)

. T he sentencing court should consider “ all relevant conduct . . . ‘ not solely on the basis of elements and acts cited in the count of conviction.’” United States v. Garcia , 242 F.3d 593, 598 (5th Cir. 2001) (quoting U.S.S .G. ch. 3, pt. B, introductory c m t . (2013) ). Specifically, the court “must take into account the broad contex t of the defendant’s offense.” 11 The court must “articulate the fac

tual basis for the finding that [defen dant ] was an average participant.” United States v. Melton , 930 F.2d 1096, 1099 (5th Cir. 1991). “[A] simple statement [, however,] that the defendant was not a minor participant’ will suffice as a fac

tual finding.” United States v. Gal legos , 868 F.2d 711, 713 (5th Cir. 1989). T he district court divided the members of the conspiracy into two cate

gories: “the three leaders and the rest of them being what I would deem and

9 A “minimal participant” is an individual “who [is] plainly among the least culpable of those involved in the conduct of a group.” I d. cmt. n.4.

10 See also United States v. Angeles

- Mendoza , 407 F.3d 742, 753 (5th Cir. 2005) (quot

ing United States v. Garcia , 242 F.3d 593, 598 (5th Cir. 2001)).

11 United States v. Brown , 54 F.3d 234, 241 (5th Cir. 1995) ; s ee also United States v. Mel ton , 930 F.2d 1096, 1099 (5th Cir. 1991) (“ The com men tary to § 3B1.2 provides that t he determination of a defendant’ s st atus as a minor participant is ‘ heavily dependent upon the facts of the particular case.’ The determination of participant status is a complex fact ques

tion, which requires the court to consider the broad context of the defendant’ s crime. ”). 8 Case: 13-60069 Document: 00512465380 Page: 8 Date Filed: 12/09/2013No. 13

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have deemed as a verage.” Although the court considered Jones and Coe a ver age participants , i t agreed with C oe that he and Jones did not have iden tical roles: “ [I] n terms of money received and number of transactions [] Mr. Coe’s

num bers are different than [sic] Mr. Jones’ [s]. ” In spite of recognizing the differences between Jones ’s and Coe’s involve

ment, th e court found that Coe ’s was not “merely peripheral.” The court made th r ee findings to justify th at conclusion: (1) “[Coe] had full knowledge of the whole scheme

. . . [ and was] aware of the entire scheme ” ; (2) Coe acti vely par

ticipated in the scheme; 12 and (3) every member played an important role in the operation of th is type of wire

- fraud conspirac y
. 13 The court did not clearly err in finding that C oe’s involvement in the wire

- fraud conspiracy was not “merely peripheral.” First, t wo other runners in t h at conspiracy did not receive minor

- role adjustments. 14 In upholding the refusal to grant those reductions in those two cases , this court rejected argu
ments si milar to the one Coe presses. 15 Second, e ven though Coe can show that Jones was more culpable than he was , that fact “does not automatically qualify [him] for either minor or minimal participant status.” Atanda , 60 F.3d at 198. The court did not, therefore, err in declin ing to impose a minor

participant reduction.

12 Coe was “ very actively in volved in the scheme to the extent that you participated in 19 transactions. [Coe was] involved with 13 different victims, three of which were reloaded as many times as four times. [Coe] traveled to seven different states, and [] received $53,000. ”

13 “ An d if anything that I've come to appreciate about this scheme is how important it was for every person to play their [sic] particular role an d how all roles were essential. Whether you were supplying the lead list, making the phone calls, or picking up the money and reim bursing it to the leaders in this case, everybody played a very important role. ”

14 See Allen , 2013 WL 3285686, at *4

– 5; Thomas , 476 F. App’x at 15

– 16.

15 See Allen , 2013 WL 3285686, at *5; Thomas , 476 F. App’x at 16. 9 Case: 13-60069 Document: 00512465380 Page: 9 Date Filed: 12/09/2013No. 13

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IV. Jones claims the district court erred in applying the two

- level vulnerable

- victim adjustment under § 3A1.1. Jones reasons that because he had limited knowledge of the conspiracy, a person in his position would not have known the vulnerability of the victims. 16 A court must increas e a n offense level by two if it determines that t he defe n dant “knew or should have known that a victim of the offense was a vul

ner able victim

. ” § 3A1.1(b)(1). A “vulnerable victim” i s “a person (A) who is a vic tim of the offense of con viction . . . and (B) who is unusually vulnerable due to age, physical or men tal condition, or who is otherwise particularly suscepti

ble to the criminal con duct.” § 3A1.1 cmt. n.2. Section 3A.1.1(b) does not apply , how ever, “if the factor that makes the person a v ulnerable victim is incorpor

ated in the offense guideline.” I d. Section 3A1.1(b)(1) “is primarily concerned with the impaired capacity of the victim to detect or prevent crime, or a victim who is less able to resist than the typical victim of the offens e.” United States v. Wilcox , 631 F.3d 740, 755 (5th Cir. 2011 ) (citations and internal quotation marks omitted)

. The victims
must have “an ‘unusual’ vulnerability” that applies to only some of the victims. United States v. Moree , 897 F.2d 1329, 1335 (5th Cir. 1990). The determination of v ul nerability , however, cannot be reduced “t o a calculation of the victim’ s age or to a diagnosis of the victim’ s dis ease. ” United States v. Mejia

- Orosco , 868 F.2d 807, 809 (5th Cir. 1989).

16 Coe does not present this argu ment on appeal.

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T he district court bega n its discussion of the vulnerable

- victim adjust

ment by acknowledging that the government could not prove that Jones had actual knowledge of the victims’ vulnerability. T he c ourt found instead that

an objec tively reasonable person with Jones’ s knowledge of the scheme should have known that that the y were vulnerable. The court based th at determination on three findings: First, i t noted that these type of telemarketing schemes are designed to prey on vulnerable victims. 17 It found that, because of the nature of such schemes, every member of i t should have known that the victims would be vulnerable. Sec ond, the court found that the victim’s “names [are] indicative” of the fact that the y victims are vulnerable, because “names like Mildred and Lula B elle . . . tend to be indicative of older persons.” Finally, the court considered “reloading 18 in this case [to be] a huge factor.” To th at end, the court found that Jones had engaged in “reloading , ” 19 a nd t he fact that he was able to “reload” his victims

17 “[O] ne of the things that some [similar] cases
. . . put these types of [telemarketing] victims in a unique class. . . . I think it’ s just interestin g that to employ this scheme it’ s nec essary for David Beasley, Patrick Beasley, and George Coe to obtain these lead lists. There’s a reason that they get the lead list. They get names. They get addresses, and they get persons that are typically called upon in telemarketing schemes. That’s the reason ven

d ors sell lead lists. So there is a reason why they work off of those lists. It’s a telemarketing scheme. . . . [I]n absence of knowing the state of mind . . . of the runners, the Court really has to look at it from just a common sense approach. Given a ll of these factors and the totality of the circumstances, is it likely, is it probable, is it reasonable to believe that the scheme itself involved attracting, calling, preying upon vulnerable persons? And that’s the nature of the scheme.”

18 Ewing define d “reloading” during the sentencing hearing as follows: “When they find victims that are extremely vulnerable, a lot of times they preyed upon them mul tiple times. Some they preyed upon countless times.”

19 “ [Jones] received from ten different victims re loads of numerous times, up to eight times, from any one of those ten victims.” 11 Case: 13-60069 Document: 00512465380 Page: 11 Date Filed: 12/09/2013No. 13

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should have indicated to him that they were vulnerab le

. 20 Jones disputes each of these bas e s
. Regarding the nature of the tele

mark et ing scheme , he argues the court erred by “imput[ing] the knowledge obtained by the organizers, to the low level runners such as Jones.” As for the second find ing , Jones claims the court did not rely on any “empirical evidence [that] prov[es] that a person’s name is a reliable indicator of his or her age.” Alter na tively, Jones urges that the particular names of the vic ti ms would not , in any case, indicate they are old and therefore vulnerable. 21 Finally , Jones disputes that he “reloaded

. ” P ointing to Ewing’s testi

mony, he maintains “ there was no evidence that Jones

. . . placed any calls or spoke to the victims, [] compile [d] a database or list of names and [] had abso

lutely no control over which victims were called and solicited by the organiz

ers. ” Jones avers that this “ limited role in the offense does not rise to the same factual level of involvement in the co nspiracy as other Circuits have used to apply the enhancement for reloading.” 22 Because the court did not clearly err in finding that Jones had reloaded his vic tims , we do not need to address whether i t erred in its first two findings

20 “[J] ust take a ny one day, Mr. Jones, that you’ re receiving two or more receipts of money fr om the same person that you don’ t know, that should put one on notice. . . . [O]ne would know one’ s personality, infirmity, something is leading that person to send money to
some one that they [sic] do not even know and have a legitimate reason for doing so, and I think that is, by definition, vulnerable. ”

21 Jones claims he “ collected money from ten specific pe ple , all of whom use an array of different names such as Camelia, Florence, Lilyan, Jewel, Hannah, Judith, Catherine, Eliz abeth, Lillian and Ozemai, none of which the District Court could have used to correctly determine the age of that person. ”

22 Jones mentions United States v. Llamas , 599 F.3d 381 (4th Cir. 2010) ; United States v. Day , 405 F.3d 1293 (11th Cir. 2005) ; United States v. Coe , 220 F.3d 573 (7th Cir. 2000) ; and United States v. Jackson , 95 F.3d 500 (7th Cir. 1996). 12 Case: 13-60069 Document: 00512465380 Page: 12 Date Filed: 12/09/2013No. 13

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or whether the y support the vulnerable

- victim adjustment. Jones repeats the arguments made by Timothy Allen , s ee Allen , 2013 WL 3285686, at *5

– 6 , in which case we upheld the application of the vulnerable

- victim adjust ment , s ee id. at *6. In doing so, we declined to “a dopt a bright

- line rule with respect to reloading and instead . . . resolved [this issue] on the facts spe cific to this case.” I

d. We concluded that the district court had not erred in apply ing the vulnerable

- victim adjustment in light of the fol low ing findings : Even in the absence of knowing any victims ’ ages, Allen collected money in connection with a fraudulent scheme from the same indi

viduals on multiple occasions. Although he was not a leader of the scheme and did not personally contact any of the victims, he was involved in a large number of transactions, sometimes taking money from the same victim up to three times in a short period.
I

d. Therefore, even if the other circuits Jones cites require a higher degree of culpability than the distric t court attributed to Jones, this case cannot be dis tin guished from Allen

. Just as there , the district court did not find Jones to be “a leader of the scheme [or that he ] personally contact [ed] any of the vic

tims. ” But, just as in Allen , the c ourt found that Jones was “ involved in a l arge number of transactions, sometimes taking money from the same victim” repeat edly in a short period. Even if we were to consider the cases from the other circuits that Jones cites, we would not reach a dif ferent result. I t is true that other circuits have commonly used th e “reloading” theory to justify applying a vu lnerable

- victim

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tims

. 23 N one of th o se decision s , 24 however, compel s the conclusion that the district court clearly erred in extending th at theory to runners

. Because the defendant s in tho se cases happened to have had more substantial roles , and because some of th ose schemes did not involve runners, th o se courts did not

n eed to address whether the vulnerable

- victim adjustment could be applied to

runners. Because Jones did not speak to any victim, he may not have known the particular cau se of a victim’s vulnerability. When he returned to pick up more money from a victim sh ortly after having already done so, however, he should have recognized that th at victim was vulnerable to this type of scheme ; h e should have known this to be especially true when he picked up money from the same victim eight consecutive times in short suc cession. T he district court did not clearly err in applying the vulnerable

- victim adjustment to Jones.

23 Day , 405 F.3d at 1296 (“ Donna Day had a direct role in compiling the names and addresses of those who had previously donated to the Organizations, and adding them to the lead sheets that wer e provided to the Organizations’ solicitors. Donna Day’ s actions allowed, if not directed, the conspirators to repeatedly solicit those victims. ”); United States v. Ciccone , 219 F.3d 1078, 1086

– 87 (9th Cir. 2000); Coe , 220 F.3d at 582; Jackson , 95 F.3d at 504 (“ Only experienced telemarketers, including both Mark Jackso n and Stephans, were allowed to reload customers. ”).

24 In Llamas , the district court did not even make a finding as to whether the defen

dant had reloaded. See Llamas , 599 F.3d at 389 (“ [T] he Government seek s to salvage the dis trict court’ s application of the vulnerable victim adjustment by relying on other aspects of the record

- which the court did not discuss. For example, the Government maintains that, by attempting to ‘reload’ persons who had already fallen victim to the sweepstakes scheme, Llamas an d his coconspirators preyed on individuals they knew to be ‘particularly susceptible to the criminal conduct,’ thereby supporting application of the vulnerable victim adjustment. The court, however, did not adopt such a theory as its rationale for finding that Llamas should have known of the victims’ unusual vulnerabilities.”). 14 Case: 13-60069 Document: 00512465380 Page: 14 Date Filed: 12/09/2013No. 13

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V. Jones and Coe argue that the district court erred by applying enhance

ments under § § 2B1.1(b)(2)(B) and 3A1.1(b)(2). Neither raised th at argument during sentencing, however, so we review only for plain error. See Mares , 402 F.3d at 520. To succeed, Jones and Coe need to show that (1) the district court erred; (2) this error is plain; (3) this error affects substantial rights; and (4) err or “seriously affect[ed] the fair ness, integrity, or public reputation of judi cial proceedings.” See id. (quoting Cotton , 535 U.S. at 631 )

. A lthough t he
gov ernment concedes that the court erred and asks us to remand for another sentencing hear ing o n this issue , Coe and Jones must still affirmatively satisfy all four prongs

. We conduct the usual, rigorous plain

- error review even where the gov ernment confesses error. 25 The district court applied a four

- level enhancement under § B1.1( b)(2)(B) because the offense involved more than fifty people. The court also applied a four

- level enhance ment under § 3A1.1(b)(2) based on the vulnerable

- victim enhancement. The s entencing g uidelines, however, prohibit applying both § § 2B1.1(b)(2)(B) an d 3A1.1(b)(2): “ If subsection (b)(2)(B) or (C ) applies, an enhancement under § 3A1.1(b)(2) shall not apply. ” U.S.S

. G

. § 2B1.1 cmt. n.4 (2013). In applying both enhancements to both sentences, t he district court committed an error that was plain , thus s atisfying the first two prongs

. As for the third prong, a plain error affects substantial rights whe re it is “prejudicial , ” that is, “affected the outcome of the district court pro ceed ings.” United States v. Olano , 507 U.S. 725, 734 (1993 )

. A defendant needs to show

“ a reasonable probability that he would have received a lesser sentence , ”

25 United States v. Hope , 545 F.3d 293, 295 (5th Cir. 2008) (“We are not bo und by the Gov ernment’ s concession of error and give the issue independent review.”). 15 Case: 13-60069 Document: 00512465380 Page: 15 Date Filed: 12/09/2013No. 13

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- 60091 United States v. Mudekunye , 646 F.3d 281, 289 (5th Cir. 2011) (per curiam) , which means “ (1) the district court mis takenly calculate [d] the wrong Guide

lines range, (2) the incorrect range is sig nif icantly higher than the true Guide

lines range, and (3) the defendant [was] sen tenced within the incorrect range , ” i d. at 289

– 90

. Coe and Jones can show a reasonable probability that they would have received lesser sentence s using the correct range
. The district court initially incorrectly determined a range of 92 to 115 months for Coe and 78 to 97 months for Jones ; the correct ranges were 77 to 96 and 63 to 78 months , respectively

. The court sen tenced both within the incorrect ranges. This case is unusual, because we know for sure wh at the district court would have done, given that it attempted to re

- sentence the defendants. Rec

og nizing its error, the court (1) recalculate d the appropriate range s and (2) sen tenced Coe and Jones to lower sentences. Coe and Jon es can therefore easily show that th e error affected their substantial rights. Regard ing the fourth prong, t his case presents a situation that is seldom presented : T he defen dants, the gov ernment, and the district court agree that the court plainly erred. Furthermore, this court found plain error in assessing th e identical issue raised by Beasley. 26 We carefully note, however, that the fourth prong is not automatically satisfied just becau se the other three have been met. United States v. Escalante

- Reyes , 689 F.3d 415, 425 (5th Cir. 2012) (en banc). Relief under the fourth prong should be granted only “rarely,” United States v. Dominguez Benitez , 542 U.S. 74, 83 n.9 (2004), and only in

26 See Beasley , 481 F. App’x at 145. Beasley does not, however, discuss why this error seriously affected the fairness, integrity, or public reput ation of judicial proceedings. See id. 16 Case: 13-60069 Document: 00512465380 Page: 16 Date Filed: 12/09/2013No. 13

- 60069 No. 13

- 60070 No. 13

- 60091
“e xcep tional circumstances,” United States v. Atkinson , 297 U.S. 157, 160 (1936). Because the instance circumstance qualifies as rare and exceptional, the fourth prong has been satisfied : I t would seriously affect the fairness, integ

rity, and public reputation of judicial proceedings if we did not allow the dis

trict court to correct an error it recognized and attempted to cor rect but did not have jurisdiction, where the government does not object and this court , albeit in an unpubli shed opinion, already has recognized that this pre cise mistake

con stitutes plain error for a fellow co

- conspirator

. The judgments of sentence are AFFIRMED in part and VACATED in part and REMANDED for resentencing.

17 Case: 13-60069 Document: 00512465380 Page: 17 Date Filed: 12/09/2013